RECOGNISED AGENTS AND ADVOCATES (CIVIL PROCEDURE)

IN TANZANIA

1. AN OVERVIEW;

The law prescribes three options to a party to suit in conducting the suit. The options however may be exercised with the consent of the court. The three options are that; the party may conduct the suit himself, by a Recognised Agent or by an Advocate.

However, where the Attorney-General is a party to suit any public officer duly authorised by him in that behalf may conduct the suit for him (Order III rule 1 of Cap. 33). For that matter, a Public Officer conducting a suit on behalf of the Attorney General may properly be referred to as his agent.

2. RECOGNISED AGENTS;

WHO IS A RECOGNISED AGENT?

Before one knows about a recognised agent he must firs know who an agent is. Neither Cap. 33 nor Cap. 1 Defines the term “Agent”. However, S. 134 of the Law of Contract Act, Cap.345 (R.E. 2002) defines the term in the following words;

Another legal attempt in defining the term was made by EARL JOWITT (General Editor) And CLIFFORD WALSH (Editor), The Dictionary of English law, Volume 1. (A-H), Sweet & Maxwell Limited, London, 1959 (at page 83), who defined the terms “Agency” and “Agent” in the following style;

“An agent is a person who acts on behalf of another person (the principal) by his authority, express or implied. The status of an agent or the relation between him and his principal is called agency”

As to the meaning of the “Agent/Principal Relationship”, the Encarta Encyclopaedia Standard 2004 (1993-2003 Microsoft Corporation) offers the following illustration to the phrase;

“A voluntary relationship between two parties whereby one, the agent, is authorized by express or implied consent to act on behalf of the other, called the principal”.

At least the three above named legal efforts in defining the term agent give a clue of the definition, and from them one gathers the following key attributes of an agent, they are as follows;

a) He must be a person.

b) He must be doing an act for or on behalf another person (and not for himself).

c) There must be an authority or consent for acting so by that other person (the Principal).

d) The affiliation (agency) between the Agent and that other person (the Principal) must be a voluntary one as differentiated from a forced one.

POWERS OF RECOGNISED AGENTS;

An Overview;

The law governing Recognised Agents is Order III rule 1 and 2 of Cap. 33. The rule gives powers to Recognised Agents to do the following on behalf of the parties; to appear, make applications and do any other act which the actual party would have done. The rule mentions the following persons as recognised Agents;

a) Persons holding powers-of-attorney.

b) Persons carrying on trade or business for and in the names of parties not residents within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only where no other agent is expressly authorised to make and do such appearances, applications and acts.

Legal Definition of Powers of Attorney;

As usual Cap. 33 does not define what are the Powers Of Attorney, but S. 4 of Cap. 1 defines the term “Power” as including any privilege, authority, or discretion.

An attorney is defined as “one who is appointed by another to do something in his absence and who has authority to act in the place and turn of him by whom he is delegated” see EARL JOWITT (General Editor) And CLIFFORD WALSH (Editor), The Dictionary of English law, (supra, at page176).

A direct definition of the phrase Powers of Attorney is found under S. 2 of the Stamp Duty Act, Cap 189 (R.E. 2002) which defines the phrase "power of attorney" as to “include any instrument empowering a specific person to act for and in the name of the person executing It”. The phrase thus, when used in relation to court proceedings refers to an authority given by a party to court proceedings (donor of the powers), to another person (donee of the powers) with the intention that the latter acts for the former in the proceedings. Powers of attorney may be special or general.

Requirements of Powers of Attorney;

There are requirements of the powers of attorney according to the above cited definitions and the legal practice; these requirements are as follows;

a) It must be written and signed by the donor.

b) It must be attested.

c) It must show full names and addresses of the donor (giver) and donee (receiver) of the powers.

d) It must be express and clear, i. e. it should not be ambiguous or equivocal, (it should not carry more than one interpretation).

e) It may contain an acknowledgement clause in which the donee of the powers accepts the powers given to him.

f) Stamp duty must be paid for the powers of attorney.

Explanation on This Requirement;

S. 5 of Cap 189 (R.E. 2002) provides that instruments specified in the Schedule to the Act (Powers of attorney inclusive) shall be chargeable with stamp duty, of course; there are exempted documents under S. 5, but the power of attorney is not one of them.

According to article 46 (e) of the Schedule to Cap. 189 the power of attorney is chargeable with stamp duty at the tune of Tanzanian Shillings 500/= (five hundred).

The provisions of S. 5 of Cap 189 are mandatory by nature because the word “shall” is used, and the law is to the effect that when the term “shall” is used in statutory provisions it signifies a mandatory duty, see the provisions of S. 53 (2) of the Interpretation of Laws Act (Cap; 1, R.E 2002) and the decision of the court of appeal in ASHURA ABDULKADRI v. THE DIRECTOR TILAPIA HOTEL, CIVIL APPLICATION NO; 2 OF2005, AT MWANZA, at page 5-6, (unreported).

An omission to pay the mandatory stamp duty in respect of powers of attorney has therefore a negative effect, it renders the document incapable of being acted upon as per the express statutory prohibition embodied in S. 47 of Cap 189, see also the envisaging by the Court of Appeal in ZAKARIA BARIE BURA v THERESIA MARIA JOHN MUBIRU [1995] TLR 211 .

It must however, be noted that the contemporary approach of the law is to the effect that, whether or not the use of the term “Shall” implies a mandatory duty will depend on the circumstances of each case. The Court of Appeal in FORTUNATUS MASHA v WILLIAM SHIJA AND ANOTHER 1997 TLR 41, at page 43 directed thus;

“We think that the use of the word `shall' does not in every case make the provisions mandatory. Whether the use of that word has such effect will depend on the circumstances of each case.”

The court, recently (in August, 2006) underscored this stance in GOODLUCK KYANDO v. REPUBLIC, CAT CRIMINAL APPEAL NO; 118 OF 2003, AT MBEYA. (ureported)

Powers of Recognised Agents in Service of process.

According to Order III Rule 3 (1) and (2) of Cap. 33 a recognised agent is empowered to receive court documents for and on behalf of the actual party to proceedings, and such service, if done to the agent is deemed done to the party himself, but the court is empowered to direct otherwise as far as the service process is concerned. The normal procedure for the service of process on a party to a suit applies mutatis mutandis to the service of process on the recognised agent.

A party to suit is also entitled in law to appoint a recognised agents (apart from the one described in rule 2) for the purposes of accepting service process only so long as such person resides within the jurisdiction of the court and the appointment is done by an instrument in writing signed by the party to suit (the principal), the appointment may be special or general, and if it is general, then a certified copy shall be filed in court. (Order III rule 6 of Cap. 33)

Un Authorised Acts by Donees of Powers of Attorney;

The position in law is that; a donee of Powers of Attorney is only empowered to do acts authorised by the donor, he cannot do what was not authorised to him without the knowledge and or consent of the donor, see S. ZAHIR ROSHANALI HIRANI v REGISTRAR OF TITLES [1990] TLR 122.

Revocation of Powers of Attorney;

Where the donor of the powers intends to revoke the same, he must do so by notifying the donee and not otherwise, see see S. ZAHIR ROSHANALI HIRANI v REGISTRAR OF TITLES (supra). The logic behind this requirement is that, the notice of the revocation marks the termination of the authority given to the donee.

Powers of Recognised Agents Upon Death by a Party to Suit;

The law limits the powers of Recognised Agents to the life-time of the party to suit only, and when the party dies the authority dies too, see the decision of the Court of Appeal in IMERIMALEVA AND OTHERS v DIMA NHORONGO [1991] TLR 1.

RESTRICTIONS AGAINST RECOGNISED AGENTS;

An Overview;

The law does not give a free ticket for any person to represent any party to suit as a Recognised Agent, there must be sufficient grounds for such a representation, that is why, under the proviso to Order III rule 1of Cap. 33 the court is clothed with powers to restrict the appearance by a recognised agent and to make orders for personal appearance of the party.

There must therefore, first exist sufficient grounds for one to represent another in this style. Examples of sufficient reason for such representations are disability due to poor health or old age, staying away from the jurisdiction of the court, etc.

Feigned Representations;

The law prohibits such unwarranted representations even where one holds powers of attorney, see Ss. SS. 41, 70 (a) and (b) of the Advocates Act, Cap. 314 (R.E 2002). Mwalusanya, J (as he then was) in JULIUS PETRO v COSMAS RAPHAEL 1983 TLR 346 was of the view that such a representation by recognised agents is permitted by the law only in some circumstances where a “genuine” representative is involved.

Healthy Parties to Proceedings;

Again, in EDWIN s/o FESTO v. LEVINA w/o IFUNYA, HIGH COURT CIVIL APPLICATION NO; 17 OF 2000, AT BUKOBA REGISTRY(unreported), another Judge, Masanche, J, discarded the unwarranted representation in court in which the actual party was old but healthy. With lamentations the judge remarked; and I leave him to speak by his own words;

“I must really register my concern at people who think they are clever, grab cases from other people and prosecute them without any legal basis. They do this at the risk of those cases being declared null and void.”

Presence of Represented Party in Court;

The law does not give room to the representation of a party to proceedings by way of a Recognised Agent before the High Court and the District Court where the actual represented party is in Court. The same restriction applies before the Court of Appeal, where such a party resides in Tanzania; see NAIMAN MOIRO V. MAILEJIET K.J. ZABLON (1980). TLR. 274. The decision in EDWIN FESTO VS. LEVINA IFUNYA HC. CIV. APPL. NO; 17 of 2000 AT BUKOBA. (unreported) also underlines this stance.

Rationale of the Restrictions;

The restrictions in the practice is meant to control the legal practice by unprofessional persons, which said practice if not controlled will result to serious injustice, i. e. uniformed parties to suits may be misled and loose their cases upon making unnecessary consideration to the purported legal practitioners, especially those branded as “Bush Lawyers” who tend to get into shoes of parties for remunerations. The target it thus to guard the legal practice for purposes of avoiding foul-play by unqualified and unethical crooks.

THE PRACTICE IN PRIMARY COURTS;

An Overview;

As it is the practice in courts where Cap. 33 is applicable, the law allows representation of parties in civil proceedings before primary courts. However, advocates are strictly restricted to appear or act for any party in a primary court [S. 33 (1) of the Magistrates Court Act, Cap. 11, R.E. 2002]. It follows therefore that only a class of persons are empowered to appear for others in these courts.

The class of persons permitted to represent others in primary courts includes relatives or any member of the household of any party to any proceedings of a civil nature, upon the request of such party, see [S. 33 (2) of the Magistrates Court Act, Cap. 11, R.E. 2002] and the decision in JULIUS PETRO v COSMAS) RAPHAEL (supra

The word "relative" should be restricted to near relatives; likewise, "members of the household" should be interpreted ejusdem generis to mean related members of the household; the definition of the word "relative" should not be extended to include a person who works for gain, see JULIUS PETRO v COSMAS RAPHAEL (supra), hence representation by power of attorney for remuneration is prohibited in law.

Under these circumstance, it was held in EVARISTER KAJUNA v. THEREZA JACOB [1973] LRT. n. 10 that a mother can sue for his son under S. 29 (2) of former Magistrate Court Act 1963 which had similar provisions to S. 33 (2) of the current Cap. 11. The request of the person to be represented is in law a mandatory condition which must be met before a person so represents another in a suit. In EVARISTER KAJUNA’s case (above cited), it was held that the suit was not maintainable by the mother for want of the request by the son for her to sue for him.

As to representation of body corporate in primary courts, the law allows a person in the employment of the body corporate and duly authorised in that behalf, other than an advocate, to appear and act on behalf of the body corporate [S. 33 (3) of the Magistrates Court Act, Cap. 11, R.E. 2002].

According to the definitions of the term “Agent” suggested above, it may be legally concluded that, the persons authorised to appear on behalf of the parties before primary courts are also Recognised Agents in disguise though the law (Cap. 11) does not expressly declare them so. Hence, in primary courts, unlike in the rest of the other courts in of Tanzania, recognised agents have the monopoly of representing parties to court proceedings as against advocates. However, for the sake of justice, the same restrictions in representation must apply to both, primary courts and other courts above them.

DISTINCTION BETWEEN RECOGNISED AGENTS ON ONE HAND AND OTHER PERSONS REPRESENTING PARTIES IN COURT PROCEEDINGS;

Recognised Agents, in one hand must be distinguished from other groups of persons representing others in court. To a lawyer, this is very important. The other groups envisaged here are those who represent others in a Representative Suit (Order 1 rule 8 of Cap. 33), those representing others under Order 1 Rule 12 of Cap. 33, and persons appearing as next friends. The distinction can be highlighted in the following terms;

a) A Recognised Agent on one hand and a Person acting under Order 1 rule 8 or Rule 12 of Cap. 33 on the other;

The dissimilarity here is that, the Recognised Agent acts in a suit while he is not interested, he is not a party thereto, and he is not a beneficiary to the results of the suit, he only acts for and on behalf of the actual party to the proceedings.

b) Recognised Agents on one hand and a Next Friend;

There is a similarity and dissimilarities between the two. The similarity is that;, they both act in a suit while they are not personally interested to the subject matter of the suit, they are not parties thereto, and they are not beneficiaries to the results of the suit, they only act for and on behalf of the actual party to the proceedings.

3. ADVOCATES.

AN OVERVIEW

As observed previously, a party to suit is entitled to be represented by other persons, advocates inclusive, in the conduct of the suit (Order III rule of Cap. 33). There is a special law relating to advocates and matters connected to them. This is the Advocates Act, (Cap. 341 R. E. 2002).

In this forum we are much concerned not with this statute, but with matters related to the advocates representation of parties to suits as their clients, which said matters are mainly governed by the Civil Procedure Code, Cap. 33.

The Civil Procedure Code, Cap. 33 however, does not provide a straight-forward definition of the term “advocate” it indirectly defines the term by reference to Cap. 341 (see S. 3 of Cap. 33). In turn, S. 2 of Cap. 341 defines the term “advocate" as any person whose name is duly entered as an advocate upon the “Roll”" and the term “Roll" means the list of advocates kept in accordance with the provisions of Part IV of the same Cap. 341. Part IV of the Act carters for matters relating to qualification, enrolment, registration and precedence of advocates.

Again, S. 3 (2) (a) – (d) of Cap. 341 declares some other personalities as advocates, these include the Attorney-General, Parliamentary Draftsmen and State Attorneys, the legal secretary Income Tax Department; persons holding offices in Urban or Township or District authorities, the Registrar-General, Administrator-General, Public Trustee, Official Receiver, Commissioner for Lands and any person duly qualified holding office in the office of the Registrar-General, or of the Administrator-General, or of the Official Receiver or the Land Officer; and any person duly qualified holding office in such parastatal organisation as the Minister may, by order published in the Gazette designate.

It if for these reasons therefore that the High Court in ZUBERI GIGI v. THE RETURNING OFFICER, BABATI AND ANOTHER [1974] LRT. 52 held that State Attorneys are also Advocates and are entitled to practice as advocates.

POWERS OF ADVOCATES;

An Overview;

An advocate, according to Order III rule 1 of Cap. 33, has powers to do the following for and on behalf of a party to suit;

a) To enter appearance.

b) To make applications or;

c) To act in or to any court, in respect of matters required or authorised by law to be made or done by the party

For these reasons, it was held in E.A. POSTS AND TELECOMUNICATIONS CORP. v. M/S TERAZO RAVIOUS [1973] LRT. n. 58 to the effect that, appearance by an advocate is recognised as appearance of a party himself;

Powers of Advocates in Respect of Service of Process;

The law empowers an advocate to receive documents for and on behalf of his client, and once the service process is affected upon him, the law presumes that the service is effected upon the party himself unless the court directs otherwise (Order III Rule 5 of Cap. 33).

It was also held in ELKANA v. PATEL [1960] E. A. 340 (U) to the effect that, where an advocate has ceased to act for lack of instructions, service of the hearing notice at his address is good if the defendant has not furnished any other address.

Powers of Advocates in Signing documents of client;

The authority of an advocate in law is not limited to appearance and making applications, it is extended to signing of documents for and on behalf of his clients in some circumstances, in NIMROD ELIREHEMAN MKONO v STATE TRAVEL SERVICE LTD. & MASOO SAKTAY [1992] TLR 24 The Court of Appeal held that; the proviso to 0.6 R.14 of the Civil Procedure Code (Cap. 33) allows an advocate by reason of absence of the client or for other good cause to sign on behalf of his client. (Order VI Rule 14 of Cap. 33 is in respect of signing pleadings).

Dual Role Of Advocates, As Witness And Advocate;

The law is to the effect that an advocate cannot pose both as a witness and counsel at the same time in a single matter, see JAYANTILAL NARBHERAM GANDESHA v. KILLINGI COFFEE ESTATE LTD(1968) HCD. n. 399 in which it was held that, it is irregular for an advocate to act in the dual role, and further that if he is called as a witness, he must step down as an advocate.

This situation was also considered in JAFERALI AND ANOTHER v. BORRISAW AND ANOTHER [1970] HCD. 324 in this case the High Court did not establish any stance of the law because the application to restrict such a conduct was held brought prematurely. However, the Court recognised the practical restriction to the effect that it is improper for an advocate to conduct himself in such a manner.

It is apparent therefore that the powers of an advocate are limited to representing his clients only; they can not be extended to testify on behalf of his client. Where an advocate wishes to address the court on behalf of his client, he is only entitled to make submissions and not to testify.

It must be born in mind however, that advocate’s submissions do not have any evidential value, see the observation by the court of appeal in THE ASSISTANCE IMPORTS CONTROLLER (B.O.T) MWANZA VS. MAGNUM AGENCIES CO. L.T.D. CIV. APPEAL NO; 20/90 AT MWANZA. (unreported). It thus remains true that he has no room to give evidence in the case in which he acts as advocate.

Powers To Call and Arrange Sequence of Witnesses;

An advocate duly instructed to take the conduct of the case has mandate to chose witness to call and to decide the sequence suitable in the conduct of the case, the court cannot direct on these matters, see BRISCOE v. BRISCOE; [1966] 1 ALL ER 465

Advocate As Party To Proceedings Himself.

As a human being, an advocate is entitled to sue and he may be sued. When he acts in that capacity as a party to court proceedings he is deprived of the powers to act as an advocate from the bar in his own case or in the case of his firm, he will conduct it as a mere litigant and he will not be entitled to advocate’s costs (instruction fees), but to his own disbursements, see; AKENA ADOKO’S CHAMBERS V. MOHAMED MAGANGA.(1980) TLR. 134

“Double Dealings” by Advocates.

An advocate, though empowered to represent parties to proceedings, he cannot in law represent two persons of conflicting interests, otherwise he may be subjected to disciplinary proceedings including a suspension. This is an envisaging in the recent order of the High Court in SERVINGS AND FINANCE COMMERCIAL BANK LTD v. HAMAD RASHID MOHAMED HIGH COURT COMMERCIAL CASE NO; 75 OF 2006 (COMMERCIAL DIVISION), AT DAR-ES-SALAAM. (unreported).

BLUNDERS COMMITTED BY ADVOCATES;

So long as an advocate has full powers to represent his client in the conduct of the suit in court, mistakes by the advocate are taken by the law as no excuse on the party himself. The party cannot own the advocate and disown his mistakes. In CALICO TEXTILE INDUSTRIES LTD. v PYARALIESMAIL PREMJI [1983] TLR 28 for example, the Court of Appeal held that, failure by the advocate to check the law could not result to a decision in favour of his client. The rationale behind this stance of the law is that, once advocates are instructed to take the conduct of the case, they are expected to use all diligence and industry, and another reason for the stance is to avoid endless litigations, see the remarks of the High Court in MACK LEKEU VS. KAZIMIL MAHENDA HC. CIV. APPL. NO; 46 of 2002 AT MWANZA. (unreported).

In the same way, it was held that, the conduct of an advocate who walks out of the court when the case is called for hearing will not make the judgement eparte (i. e. it is in the detriment of his client); see BADRUDIN HASHAM LAKHAN AND ANOTHER V. PYARALI HASHAM LAKHAN (1978) LRT N. 26, and further that, the fact that an advocate was engaged in political matters is not a good reason for the court to grant his client’s application for extension of time because, that conduct amounts to laxity, negligence or inaction; see the decision by the Court o f Appeal in THE REGISTERED TRUSTEES OF DAR ES SALAAM NURSERY SCHOOL AND ANOR. V. GEORGIA CELESTINE MTIKILA, CAT CIVIL APPL. NO; 15 OF 1997, AT DAR ES SALAAM. (unreported)

RESTRICTIONS TO REPRESENTATIONS BY ADVOCATES;

An Overview;

Despite the fact that an advocate is entitled to act for a party to suit, there are legal restrictions for the representation. The restrictions may be categorised into two for purposes of learning; one is Absolute Restriction and two, is Conditional Restriction. An Absolute Restriction carries a sense that an advocate is entirely restricted to represent a party to court proceedings, and a Conditional Restriction implies that the restriction may be waived upon compliance to some requisites. These restrictions are as follows;

Absolute-Restrictions.

An example of this restriction is where the law explicitly provides that an advocate cannot appear and represent a party to proceedings. Under the circumstance he cannot do. In this respect reference may be made to S. 33 (1) of the Magistrates Court Act, (Cap. 11 R. E. 2002) which provides that; no advocate or public prosecutor as such may appear or act for any party in a primary court.

Conditional Restrictions.

Again, Conditional Restrictions may be divided into two groups for the same purposes of learning, these are Judicial Conditional-Restrictions and Statutory Conditional-Restrictions.

Judicial Conditional-Restriction;

These are Conditional Restrictions imposed by court orders or directives in accordance to the law. It is instructed for example, under the proviso to Order III Rule 1 of Cap. 33 that an advocate may be restricted to represent a party to suit by a court order where the court directs that the party appears himself. This is thus a restriction in disguise unless the party takes steps so that he can be represented by his advocate if any.

Another conditional restriction is under Order III rule 4 of Cap. 33 in which the court is entitled to require any advocate claiming to be acting on behalf of any party who has not appeared in person or by his recognised agent to produce, within such time as may be reasonable, a written authority signed by such party or his recognised agent authorising the advocate to act on behalf of such party. Under this situation an advocate will not be automatically entitled to represent the party to suit unless he produces the written authority or the court waives the requirement to produce it. These kinds of restriction may, for the purposes of learning be referred to Judicial Conditional-Restriction;

Statutory Conditional-Restriction;

These are Conditional Restrictions directly imposed by statutes. An example of a Statutory Condition Restriction is found under Order III Rule 2A of Cap. 33, in which an advocate cannot appear before a Commercial Court unless he complies with either of the two terms

a) He is certified by the council for legal education as being knowledgeable in commercial law and practice, or

b) He has obtained permission from the Judge in charge of the Commercial Court to appear in respect of a specific case.

Negative Approach Against Restrictions to Legal Representations;

Though there are provisions of law condoning restrictions to legal representation, there is a school of thought against the idea. In RICHARD KASELA v. THE CHAIRMAN OF THE TEACHERS SERVICE COMMISSION (TSC) AND 2 OTHERS, HIGH COURT MISC. CIVIL APPLICATION NO; 15 OF 2001, AT MBEYA. (unreported) the High Court was of the views that, a right to legal representation is a Human Right protected under the Constitution of the United Republic of Tanzania and other International Instruments, and further that; any law restricting legal representation in the course of determination of one’s right is a bad law. This stance goes in tandem with the decision in THOMAS MJENGI v REPUBLIC [1992] TLR 157.

Of course! The common position in this school of thought is that, a person must exercise his right to legal representation promptly and without unnecessary delay, see MICHAEL MPEMBELA VS. REP.(1980) TLR. 322. This was a decision in criminal proceedings but the principle smoothly applies in both criminal and civil proceedings so long as the right to legal representation is crucial to both kinds of proceedings.

D. F. MULLA, in his Code of Civil Procedure Act V of 1908 (With Explanatory Notes and Commentaries), 10th Edition, The Eastern Law House, Calcutta, 1934, (Copy in 2 volumes), at page 505, subscribed to this approach, when he made a commentary to the effect that, a Court is not justified to order personal appearance unless it has sufficient grounds to order so.

The eminent English Lawyer, Lord Denning M.R. is also in favour of this school of thought, in PETT v. GREYHOUND RACING ASSOCIATION LTD: [1969] 1 Q.B.125 AT P.13: he observed;

“I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by counsel”.

This prudence from Lord Denning M.R was also approved in our domestic decision of the High Court in JOHN KAHAMILA v PASCHAL JONATHAN & HILDA HOSIA [1986] TLR 104.

INSTRUCTIONS TO ADVOCATES;

Procedure of Instructions;

Though the law entitles a party to court proceedings to use the service of an advocate, it does not provide the procedure for doing so, it follows therefore that the transaction can take any form, and any person authorised by the party can instruct an advocate on his behalf so long as there is proof that the party has consented for the instructions. In SAID SALIM BAKHRESSA v ALLY A NGUME 1997 TLR 312 the Court of Appeal was of the views that; there is no formal procedure laid down for instructing an advocate to defend a client in a trial, the court held further that an instruction by a nephew of the party was a proper authority to the advocate.

It was also held to the effect that, a dully authorised attorney can instruct an advocate to institute a suit in the name of the attorney’s principal, see ABDALLA WARJI HIRJI v. DHANJI BHIMJI & CO. [1919] 8 EACA. 206.

Disowning Performance of a Duly Instructed Advocate;

The law is to the effect that, once a party has duly instructed an advocate, he cannot disown his acts merely because they have resulted to negative fruits on his part, the Court of Appeal in FESTO SUDI v. IHOMBE VILLAGE COUNCIL, CIVIL APPLICATION NO; 8 OF 2001, AT MBEYA (unreported) gave the following position of the law in this respect;

“An advocate is considered to be an authorised agent of a party with authority to bind his principal in court proceedings.…If however, he allows his advocate to continue representing him in proceedings in court, he cannot subsequently be heard to disown the submissions or applications made by him to court”.

This was also the legal stance adopted in the decision of CHANGORO HAMIS MLEZI v. UNITED CONSTRUCTION CO; LTD [1980] TLR. 71 and that of HANSIRAJ RAMMAL SHAH v. WESTLANDS GENERAL STORES PROPERTIES LTD AND ANOTHER [1965] EA. 1942.

Advocates Acting Without Authority Of The Party To Proceedings.

As observed above, the advocate acts in accordance to the authority given to him by the party to suit, it follows therefore that, where an advocate acts without authority of the party to suit who ultimately looses the matter, the party’s remedy is to sue the advocate for damages, see FESTO SUDI v. IHOMBE VILLAGE COUNCIL,(supra, un reported)

An English decision of MARSDEN v. MARSDEN; [1972] 2 ALL ER 1162 also supports this stance of the law and goes further deciding to the effect that a decision reached through a representation by an un-authorized advocate is liable for being set aside, the court observed thus;

Cessation of Authority of Advocates.

Like any other contract, the authority of an advocate to represent a party may cease for various ground. Death of a party to suit is one of the reasons, it is the law that advocates have authority to represent living persons only and not died persons, see the prudence of the High Court in MUGYABUSO BARONGO VS. NBC. & ANOTHER MISC. HC. CIV. APPL. NO; 27 OF 1997 AT MWANZA (unreported).

Again, the decision by the Court of Appeal IMERIMALEVA AND OTHERS v DIMA NHORONGO 1991 TLR 1 was to the effect that an authority given to an agent under Order 3 rules 1 and 2 of the Civil Procedure Code, 1966 lapsed as soon as the principal died, this stance may also apply to advocates.

Again, the authority of an advocate may be terminated upon revocation by the party to suit, or even by withdrawal of the advocate from the conduct for want of proper instructions or contact with his client.

The procedure for the withdrawal however by an advocate from the conduct of the suit, is not stipulated by the law; see the obiter in AMAN DAVID MLANGA v TIMBER IMPREGNATION LTD [1991] TLR 172 where the High Court observed thus;

“I think the requirement for advocates to formally withdraw from suits and before the courts is a requirement based on practice and courtesy only. Mr. Nyange came with his clients. If the clients will recognize Mr. Kapinga as their advocate they would have objected to Mr. Nyange appearing on their behalf and from making the application he made. They did not do so and I take it that Mr. Kapinga no longer represents the first defendant; Mr. Nyange is the one who now represents them. I therefore overrule Mr. Tarimo's objection to the application made by Mr. Nyange.”

ROLE/DUTY OF ADVOCATES;

As an officer of the court, an advocate has the role or duty to assist the court to reach into just and fair decision, see HAMADI CHALI v. REPUBLIC, CAT CRIMINAL APPEAL NO; 74 OF 2005, AT MWANZA (unreported). According to the decision in AKENA ADOKO VS. ADVOCATES COMMITTEE (1982) TLR. 290 an advocate must transact his business with skills and diligence both to court and his client.

Advocate must thus not be snags to cases, in CRDB BANK LTD v. REHEMA DISMAS MGIMWA, HC, DC CIVIL APPEAL NO; 3 OF 2003, AT MBEYA for example, an advocate filed an application under a certificate of urgency, he obtained an interim order pending the final determination of his main application, thereafter he was assigned to appear as defence counsel in a High Court Session and he left the application and his client un attended. The High Court decided to the effect that, the advocate ought to have informed the court entertaining the application and caused his client’ brief be held by another advocate in the application with the certificate of urgency, otherwise his conduct amounted to a meandering for delaying the main application, hence the conduct was an abuse of court process. The High Court thus raised the interim order.

An advocate must thus not file unnecessary applications delaying and abusing the court process; see EZECKIEL B. CHENGE VS. ADAM KAITA HC. CIV. CASE NO; 40/98 AT MWANZA. (unreported), and TARIME DISTRICT OCUNCIL VS. WILSON .E. AWOUR HC. CIV. REV. NO; 6/99 AT MWANZA. (unreported).

Again, an advocate should not tell lies to the court, otherwise this may result to disciplinary actions against him including suspension, see the envisaging in SERVINGS AND FINANCE COMMERCIAL BANK LTD v. HAMAD RASHID MOHAMED, HIGH COURT COMMERCIAL CASE NO; 75 OF 2006 (COMMERCIAL DIVISION), AT DAR-ES-SALAAM. (unreported).

It follows therefore that; advocates should be sincere and honest so as to avoid the bad image which the public sometimes imputes on them, such negative attitudes as quoted in JOHN KAHAMILA v PASCHAL JONATHAN & HILDA HOSIA [1986] TLR 104 (HC) include the intention to kill all the lawyers for the accusing allegations against them, the allegation that lawyers are deceivers whose heads are full of mischief, the allegations that they are skilled in circumvention of the law, etc. Indeed, the High Court in this case ultimately concluded that lawyers play a very useful part in society. This is the image which must therefore, be proved by lawyers themselves in their conduct both in courts and outside court.

J. H. K. UTAMWA (D/REGISTRAR) THE HIGH COURT OF TANZANIA

AND

MUSHOBOZI, JULIUS LL.B

(MZUMBE UNIVERSITY)